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Oklahoma Indians Guiding the Way for Land-into-Trust

S.E. Ruckman

6/21/11

Today, there are roughly 1,900 land-into-trust applications pending from among the 565 federally recognized Indian tribes, and the U.S. Department of the Interior estimates that 95 percent of those requests are earmarked for non-gaming purposes. Given how much land Indian tribes have lost over the past 200 years, the number of land-into-trust applications could rise as tribes grow economically—according to federal figures, U.S. federal Indian policies removed 90 million–plus acres of tribal lands and just 9 million acres have since been reacquired and taken back into trust for tribes. Federal officials say that most of the parcels tribes seek to place in trust are within existing tribal reservations or jurisdictions.

Oklahoma is a good place to take a closer look at this phenomenon. Government sanctioned land runs, allotment, treaties and all sorts of other unnatural disasters reduced the scope of tribally owned lands in that state to a fraction of what it once was, but tribes are now pushing the “rewind,” button, hoping to reinstate trust status to more than 91 parcels of land.

Much is at stake here, including self-determination and the sovereignty that accompanies the land designation. Putting land in trust also places it in the federal government’s hands and exempts it from state jurisdiction. Generally, the feds support tribes seeking trust status for lands within their reservation areas. U.S. Interior Secretary, Ken Salazar says land designation is a way to restore tribal property and empower tribes in the new era. He envisions an improved land-into-trust process for non-gaming applications to satisfy all involved parties. “It is imperative that the department process these applications in a transparent and orderly fashion,” he said in a Department of Interior memo on June 18, 2010. “Decisions must be made in a lawful and timely manner; indecision creates frustration and uncertainty.”

An inventory of Oklahoma trust applications from the Bureau of Indian Affairs (BIA) shows that the 47,000-member Chickasaw Nation in Ada, Oklahoma has 37 applications pending, the most of any tribe in the state. The 69,000-member Muscogee (Creek) Nation in Okmulgee, Oklahoma has 28 applications and the 260,000-member Cherokee Nation in Tahlequah, Oklahoma awaits results on 14 applications. The 28,000-member Citizen Potawatomi Nation in Shawnee, Oklahoma has eight applications pending. Comanche Nation (14,700 members) in Lawton, Oklahoma has seven, while the 12,000-member Cheyenne & Arapaho Tribes in Concho, Oklahoma have four requests waiting to be approved. The Southern Plains gaming tribe awaits determinations on four plots, only one of which could be used for gaming in Elk City, Oklahoma, on the state’s far western border by Texas. The Tonkawa Tribe; Kaw Nation; Sac and Fox; Choctaw Nation of Oklahoma and Seminole Nation are also awaiting rulings on trust claims.

Smaller tribes like the 14,300-member United Keetoowah Band of Cherokee Indians (UKB) and the 3,200-member Quapaw Nation confirmed that while they did not make the BIA list for Oklahoma tribes with pending applications, each had filed applications for trust. About six months ago, the Quapaws applied on roughly 100 acres, says Tamara Smiley, tribal business committee member. The tribe’s flagship casino, Downstream Casino, is within sight of the land they have purchased, which sits on the intersection of the borders of Oklahoma, Kansas and Missouri. Close by, in Cherokee County in Oklahoma, the UKB had been awaiting a determination on a trust application for a 76-acre plot it purchased that now houses their community services building, wellness center, elder center and child development center. The UKB application had been pending since 2004. The UKB were a landless tribe until May, when they received a favorable decision from Assistant Secretary Echo Hawk that will recognize the tribe’s 76 acres of purchased land to become Indian country, according to the BIA ruling.

T

rust status allows tribes to exercise more options involving self-determination, such as providing housing, health care and education for tribal members. When lands have trust status, a tribe is able to improve, monitor and regulate the acreage with less state or local interference. A plot of land the Cheyenne & Arapaho Tribes are seeking trust on has been earmarked as a possible nursing home site, says Cheyenne Special Projects director, Michael Martin.

Assistant Secretary of Indian Affairs, Larry Echo Hawk announced in November 2010 that he had approved 17 acres of land into trust for Cherokee Nation in Tahlequah. The Cherokees met a federal exception to the Indian Gaming Regulatory Act of 1988, which bars gaming on new trust land with certain exceptions, such as locations contiguous to a reservation existing prior to 1988 or within the tribe’s former reservation in Oklahoma. The state’s largest tribe plans to open a gaming facility on the land.

When tribes look for a good investment for their gaming monies, they often think of trust property. Chickasaw Nation Gov. Bill Anoatubby says his gaming tribe has made significant investments in land to diversify its economic resources.

All tribes engaged in this process must take the long view, because waiting is a significant part of almost all trust applications. Some tribes, like the 11,000-member Osage Nation and the 4,800-member Seneca-Cayuga, have been waiting years for approval for their lands. Both filed applications in 1999. Yet some tribes have no application listed as older than 2007, according to trust records.

Applying for a trust can also be a daunting expense, says Steve Griggs, who works with tribes as counsel and was an intern for Byron Dorgan, North Dakota’s then-senator and chairman of the Committee of Indian Affairs. While trust is meant to be an umbrella available to all tribes, those with gaming revenues have a big advantage. “Land can be too expensive to purchase for tribes that do not having gaming or other successful business endeavors,” Griggs says. “Tribes with successful gaming operations have an advantage because they have the resources to successfully navigate the complex land-into-trust process.”

Trust applications on sites for gaming are often vehemently contested (whether by neighboring tribes or others) and expensive for tribes to pursue, Griggs adds. Throw in the cost of legal guidance and political support and the bottom line grows. “Thus a tribe with few resources can find the process very difficult,” he says.

For tribes waiting for trust, progress on their application is savored, because it is not guaranteed. The Cheyenne & Arapaho Tribes of Oklahoma have stalled out of the trust application many times because of errors in their application packets. “We’ve never put land back into trust as far as I know,” Martin says. “I don’t know how some tribes get their land into trust so quick. Seems like they buy property and Bam!—It’s in trust. We can’t seem to do that.” Now, with a streamlined application packet and consultations offered for applicants, he says they are finally making headway.

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